Coward v. JP Morgan Chase Bank

Filing 79

ORDER signed by Judge Garland E. Burrell, Jr. on 9/17/2013 ORDERING that the 66 Findings and Recommendations are ADOPTED. Defendant's 51 Motion to Dismiss is GRANTED. Plaintiff is GRANTED fourteen (14) days to file a Fourth Amended Complaint. Plaintiff's 76 Motion to Amend is DENIED. Plaintiff's 75 Motion to Stay is DENIED. (Zignago, K.)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 DANA Y. COWARD, 9 10 11 No. 2:11-cv-03378-GEB-AC Plaintiff, v. ORDER J.P. MORGAN CHASE, 12 Defendant. 13 On 14 February 2013, recommendations the judge 16 pending dismissal motion (ECF No. 51), in which she recommends 17 the motion be granted and the action be dismissed without leave 18 to amend. (See F&R’s 11:21-23, ECF No. 66.) While the F&R’s were 19 pending, 20 objections to the F&R’s and stated in that filing that she had 21 discontinued proceeding in propria persona and was represented by 22 counsel. (Pl.’s Mot. to Extend Time, ECF No. 68.) Therefore, the 23 reference 24 because 25 Plaintiff was granted an extension to file any objections to the 26 F&R’s. (Minute Order, ECF No. 70.) to of the requested magistrate Plaintiff’s pro an However, did not file she to amend her moves 1 of pursuant status Plaintiff 27 extension judge se concerning filed findings Plaintiff (“F&R’s”) magistrate 15 28 and 19, was Defendant’s time to a to local withdrawn. objections complaint to and file Further, the to rule F&R’s. stay the 1 proceedings. Defendant opposes Plaintiff’s motions. 2 A. Findings & Recommendations 3 The F&R’s are adopted except for the recommendation 4 that 5 Defendant’s dismissal motion filed October 19, 2012, is GRANTED. 6 However, Plaintiff is granted fourteen (14) days from the date on 7 which this order is filed to file a Fourth Amended Complaint 8 addressing the deficiencies raised in the F&R’s. Plaintiff is 9 notified that failure to file an amended complaint within the 10 prescribed time period could result in dismissal of this action 11 with prejudice under Federal Rule of Civil Procedure (“Rule”) 12 41(b). 13 the B. action be dismissed with prejudice. Therefore, Motion to Amend 14 Plaintiff seeks in her motion to amend her complaint, 15 which she filed under Rule 15, an order granting her broader 16 leave to amend her complaint than what she has been given above. 17 Specifically, Plaintiff argues “that the amendment [she seeks] 18 will assert a claim that arose out of the conduct, transaction, 19 or 20 original pleading.” (Pl.’s Mot. to Amend 1:23-25, ECF No. 76.) 21 Plaintiff also indicates that she “is seeking to change or add a 22 party.” 23 information 24 attaches a proposed amended complaint to her motion as required 25 by Local Rule 137(c). See Lanier v. Fresno Unified Sch. Dist., 26 No. 1:09-cv-01779-AWI-BAM, 2013 WL 3892953, at *1 (July 25, 2013) 27 (citing Waters v. Weyerhaeuser Mortg. Co., 582 F.2d 503, 507 (9th 28 Cir. 1978)) (“The Court has discretion to deny a motion to amend occurrence (Id. set at out, 1:25.) concerning or attempted However, the be Plaintiff specific 2 to set out, neither amendments in the provides sought nor 1 for the failure to attach a proposed pleading as required by the 2 local 3 Inc., 656 F.3d 1034, 1043 (9th Cir. 2011) (affirming district 4 court’s denial of “leave to amend where the party seeking leave 5 failed to attach a proposed amended complaint in violation of 6 local rules”). rule.”); see also Cervantes v. Countrywide Home Loans, 7 Further, Plaintiff failed to move under Federal Rule of 8 Civil Procedure 16 for amendment of the applicable provision of 9 the status (pretrial scheduling) order, which is a prerequisite 10 to consideration of a motion to amend under Rule 15. “Once the 11 district court [files] a pretrial scheduling order pursuant to 12 Federal 13 timetable 14 control[].” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 15 607 (9th Cir. 1992); see also Coleman v. Quaker Oats Co., 232 16 F.3d 1271, 1294-95 (9th Cir. 2000). “Thus, [Plaintiff’s] ability 17 to amend h[er] complaint [is] governed [first] by Rule 16(b), not 18 Rule 15(a).” Johnson, 975 F.2d at 608. 19 Rule of for Civil amending Procedure 16 pleadings[,] which that establishe[s] rule’s a standards For the stated reasons, Plaintiff’s motion to amend is 20 DENIED. 21 C. 22 Motion to Stay Plaintiff also moves “this Court to exercise its 23 discretion and stay these proceedings pending the outcome of the 24 [Financial Institutions Reform, Recovery, and Enforcement Act of 25 1999 (“FIRREA”)] claim Plaintiff intends to file.” (Pl.’s Mot. to 26 Stay 2:17-18, ECF No. 75.) 27 28 “A district court has discretionary power to stay proceedings in its own court under Landis v. North American Co., 3 1 299 U.S. 248, 254 (1936).” Lockyer v. Mirant Corp., 398 F.3d 2 1098, 1109 (9th Cir. 2005). “In determining whether a stay is 3 appropriate, the Court is to consider ‘the possible damage which 4 may result from the granting of a stay, the hardship or inequity 5 which a party may suffer in being required to go forward, and the 6 orderly course of justice measured in terms of the simplifying or 7 complicating of issues, proof, and questions of law which could 8 be expected to result from a stay.’” Nw. Coalition for Alts. to 9 Pesticides v. U.S. Envtl. Prot. Agency, No. C10-1919Z, 2012 WL 10 2343279, at *3 (W.D. Wash. June 20, 2012) (quoting Landis, 299 11 U.S. at 254). 12 As the moving party, Plaintiff “bears the burden of 13 proving that a stay is warranted.” Id. (citing Clinton v. Jones, 14 520 U.S. 681, 708 (1997)). However, Plaintiff does not address in 15 her motion the referenced factors the court is to consider when 16 deciding 17 motion to stay is DENIED. 18 whether Dated: a stay is necessary. September 17, 2013 19 20 21 22 23 24 25 26 27 28 4 Therefore, Plaintiff’s

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